Supreme Court seeks DOJ views on Colville case

Wednesday, July 18, 2007  

The U.S. Supreme Court ended its term last month without hearing any Indian law cases but the justices left one significant case on the docket.

The high court is being asked to determine whether a Canadian company can be held responsible for polluting the Colville Reservation in Washington. Two members of the Confederated Colville Tribes say a Teck Cominco mine in British Columbia is sending millions of tons of waste into the Columbia River.

The 9th Circuit Court of Appeals agreed with Joseph A. Pakootas and Donald R. Michel. In a unanimous decision back in July 2006, a three-judge panel said Teck Cominco is liable for the mine waste because it ends up in the United States.

The Comprehensive Environmental Response, Compensation, and Liability Act -- sometimes known as the Superfund law -- applies to the waste released by the Teck Cominco mine "even though the original source of the hazardous substances is located in a foreign country," the court wrote in its 28-page opinion.

Teck Cominco asked the 9th Circuit to rehear the case but the request was denied. So the company hired former Bush administration official Ted Olson -- who used to be charge of the Department of Justice's Supreme Court proceedings -- to take on the matter.

Backed by the Canadian government, Olson, who has argued before the high court several times, completed the briefing process for Teck Cominco on May 15. The justices then put the case on their May 31 agenda to consider the dispute.

But rather than announce a decision, the court on June 4 asked DOJ's Solicitor General -- the post formerly held by Olson -- to submit a brief. The position is currently held by Paul D. Clement, who was Olson's top deputy from 2001 through 2004.

It is not known what DOJ will say in the brief. The SCOTUS Blog, whose authors practice before the Supreme Court, says the brief probably won't be filed until October, after the start of a new term [Reach of Superfund law at issue]. The blog also says there is a "reasonable" chance the case will be accepted.

The Environmental Protection Agency and the Interior Department have supported the Colvilles in efforts to clean up the Columbia River and Lake Roosevelt. The EPA has been trying to negotiate a remediation agreement with Teck Cominco.

In cooperation with the Colville Tribes, the U.S. Geological Survey, an agency at Interior, examined sediment at six locations in Lake Roosevelt. The results turned up mine waste in 100 percent of the samples, and every sample exceeded tribal guidelines for cadmium, lead, and zinc. Levels of arsenic, copper, and mercury were just below the guidelines.

The mine waste poses a danger to human health because tribal members depend on fish in the Columbia River basin. The pollution also has had a negative effect on tourism and economic development in the lake, according to tribal officials.

The Colvilles are supported by the states of Washington and Oregon. A host of mining interests in the U.S. and Canada are backing Teck Cominco.

Supreme Court Documents:
Docket Sheet: No. 06-1188 | Teck Cominco Petition | Pakootas | Washington | Teck Cominco Reply

9th Circuit Decision:
Pakootas v. Teck Cominco (July 3, 2006)

Relevant Links:
Colville Confederated Tribes - http://www.colvilletribes.com
Teck Cominco - http://www.teckcominco.com